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Full text of "The judiciary : an address delivered at the annual banquet of the Dialectic and Philanthropic Societies of the University of North Carolina, Chapel Hill, May 30, 1908"

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THE JUDICIARY, 



An Address Delivered by 



J. C. PRITCHARD, 



At the Annual Banquet of the Dialectic and Philanthropic 

Societies of the University of North Carolina, 

Chapel Hill, May 30, 1908. 



THE JUDICIARY. 



By the invitation with which I have been iionored to speak 
before this vei-y intelligent audience upon the subject of the 
judiciary, a topic has been assigned me which is singularly sug- 
gestive of interesting reflections. At the same time, in view of 
the largeness of the subject, I recognize the difficulty of satis- 
factorily discussing it within the limits appropriate to an occa- 
sion like the present. 

One of the earliest and loftiest conceptions of God is as 
the Great Judge Eternal of the Universe; and so, the most ex- 
alted function with which a man can be entrusted is the admin- 
istration of justice to his fellow beings. Hence, it has been 
said by a great philosopher that, in the performance of their 
official duties. Judges "should imitate God, in whose seat they 
sit." 

It is doubtless because of these high and exacting require- 
ments that, as was said in connection Avith Chief Justice -Mar- 
shall, "the world has produced fewer instances of truly great 
Judges than it has of great men in almost any other department 
of life." 

The Judicial Office is as old as organized society. Origi- 
nally, it was filled, in person, by the head of the community — 
whether Priest, Patriarch or King — who proudly styled him- 
self the "Fountain of Justice." Later on, as states became 
more populous and society more complex, the administration 
of justice had to be entrusted to personal representatives of the 
sovereign, taken from the body of the people; and thus was 
first formed the Judiciary, an institution, which, in one form 
or another, is, and for time out of mind has been, common to 
all governments. 

The Judiciary, hewever, will be found to be very different 
in different ages and in different countries, because, the free- 
dom, the virtue and the happiness of a People may be adequate- 
ly measured by the independence, integrity and prestige of its 



Judiciary. Edmund Burke said: "It is the public justice that 
holds the Community together ;" and certain it is that a truly 
great Judge can only exist in an age of political liberty and pub- 
lic morality, "in which he is the representative of the abstract 
justice of the people in the administration of the law, and is 
rewarded for the highest achievements of duty, by proportion- 
ate admiration and reverence." 

These observations are true of the Judiciary all over the 
world, but in the United States, the Judiciary occupies a posi- 
tion which, so far as any European Country is concerned, is 
wholly unique. 

Prior to the advent of what I may call the "American 
iheory" of the Judiciary, that arm of the government was whol- 
ly subject, and subordinate to, the Legislative or Executive, 
branch, or to both; and was a mere creature of one or both of 
those departments, according as one or the other, or both of 
them, formed the dominant power in the State. 

The independence of the ffudiciary, as understood and 
practiced in America, did not necessarily grow, as some suppose, 
out of the separation of governmental powers into Legislative, 
Judicial and Executive. This classification exists necessarily, 
in the very nature of those powers, and the mere fact that these 
different functions of government are performed by separate 
departments, would not necessitate all of those departments 
being independent of each other; on the contrary, in England 
(whose government Montesquieu cites as an ideal example of 
the separation of these three departments) the legislative de- 
partment — Parliament — is supreme in authority over both the 
others. 

In America, was developed the theory that the ultimate 
sovereignty in human society exists in the organized body of 
the People as a whole, and in that body, alone, exists that Di- 
vine right to rule which some Monarchs still arrogate to them- 
selves. 

Now, it is, of course, physically impossible for all the 
powers of Sovereignty, in a large State or ISTation, to be per- 
sonally and directly exercised by the Sovereign itself, whether 



that Sovereign be one man — the !^^onal■ch — or ten million men 
organized as one body — the Nation itself. Hence, just as an 
absolute monarch (in order to enable him to exercise the powers 
and perform the duties of Sovereignty which he could not do 
in person) would establish a government consisting of a Board 
of Councillors to consider and make laws, a Board of Judges 
to construe and administer them, and a Commander of his mil- 
itary forces to execute the laws and defend the country from 
foreign foes, and just ag these persons would not act in their 
own names, but in the name, and as the servants and representa- 
tives of their Sovereign Monarch; so, even when that Sover- 
eign is not a single Monarch, but the organized body of the 
whole People, acting as a Nation, yet it acts in the same way as 
would a single ^Monarch ; that is to say — being unable to per- 
sonally and directly exercise all the powers of sovereignty, and, 
acting and speaking through its written constitution — through 
which, alone, the Sovereign People can speak and act — it forms 
a government, just like the single Monarch would do, composed 
of a Legislative branch, to consider and make laws, a Judicial 
branch to construe and administer them, and an Executive 
branch to execute the laws and defend the country from its foes. 

Neither one of these branches is sovereign any more than 
was Field Marshall Oyama, the Sovereign of Japan, because he 
commanded all of the Mikado's forces. Each branch of the 
government is but the creature, representative, and servant of 
the Sovereign which created it, and which, in Russia woxild be 
the Czar, in Japan, the Mikado, and in the United States, the 
American People. 

While these governmental departments are all servants of 
one master, that is to say, the real Sovereign, yet, within the 
scope of their respective spheres, it is important that they be 
independent of each other, lest one, obtaining mastery over its 
fellow servants, should succeed in wresting the actual Sover- 
eignty from their common master. To avoid the possibility 
of this, the Sovereign People, whose servants the governmental 
departments are, have, in the constitution which created the 
government, prescribed certain checks and balances so as to 



preserve tlie independence of these departments and to correct 
an abuse of power by either of them, without necessitating a 
resort to the Sovereign itself, that is, to the People as a Nation 
in their primary capacity. 

Ifow, this, in brief, is the American theory of government, 
and one of its consequences is to place the Judiciary, as a co- 
ordinate department of our government, on a full equality with 
each of the other two departments, in the matter of their mutual 
independence of each other and of the direct accountability of 
each to their common master, the organized People of the ISTa- 
tion, the true and only Sovereign of this country. 

A result of this mvitual independence and eommon ac- 
countability of the Legislative, Judicial and Executive Depart- 
ments of the government, has been to impose upon the Ameri- 
can Judiciary a function which had no prototype in the world, 
and, to this day, has no coimterpart in Eiirope; I refer to the 
function of passing upon the constitutionality and therefore, 
the validity, of statutes enacted by the Legislative branch. A 
function the most delicate and important with which the Ju- 
diciary of any country was ever entrusted. 

The history of the Supreme Court of the United States 
affords the best, as well as the most notable, example of the 
practical application and successful operation of this American 
theory of the Judiciary, although that theory is of universal 
application in the governments of the several States composing 
the Union. "I take it as the highest encomium on this coun- 
try," said Patrick Henry, "that the acts of the legislature, if 
unconstitutional, are liable to be opposed by the judiciary." 

The Supreme Court of the LTnited States being by far 
the most prominent court in this covmtry- — and for that matter, 
the most notable tribunal in the world, — it is not surprising 
that foreigners should have supposed that this American idea 
of the right — no, I will say, hounde.n duty — of a court to re- 
fuse recognition to a statute on the ground of its unconstitu- 
tionality,— had its origin with the creation of the Supreme 
Court by the Federal Convention of 1787. Accordingly, we 
find so learned and accurate a writer as Sir Henry Maine re- 
ferring to that court as "a virtually unique creation of the 



founders of the Constitiitidn." Even a notable American his- 
torian calls the Supreme ConH "the most original work ac- 
complished bv the founders of tlie Constitution," and says that 
that court had "no prototype in history" — the peculiar charac- 
teristic referred to by both of these writers being the right of 
the court to refuse recognition to unconstitutional statutes. 

But, as has been observed by others, this is not strictly 
correct. In fact, it may be said that great, valuable and en- 
during institutions are never the work of invention but are al- 
ways the result of evolution ; and this was true of the Supreme 
Court of the United States. 

It is true that the right and duty of the courts to refuse 
recogTiition to an unconstitutional law would seem to follow as 
a necessary consequence of the adoption of a written constititu- 
tion; and yet it may be doubted if that consequence would have 
followed in America but for the peculiar situation and exper- 
ience of the American people which gradually educated them 
up to the point ; because, in Switzerland, where they have a 
written constitution also, the Legislative branch is expressly 
made the sole judge of the constitutionality of its enactments 
and the Judiciary is bound thereby. 

In the American Colonies, the legislatures never did have, 
or claim, the absolute or unlimited power of legislation. These 
Colonies, for the most part, were mere business corporations, 
gotten up for the purpose of trade and created by charters of 
incorporation, which provided for their organization and gov- 
ernment. These old charters first suggested the idea of our 
written constitutions, which, in 1776, (though previously sug- 
gested once or twice by philosophers) formed an entirely new 
departure in actual governmental organization. Of course the 
Legislative Assembly of a Colony had no powers whatever, ex- 
cept such as were conferred upon it by the charter of the Col- 
ony, or by some special enabling Act of Parliament, and so, at 
an early day, the courts were called upon, from time to time, 
to refuse recognition to the ultra vires enactments of Colonial 
Assemblies, as in the case of Winthrop vs. Lechemere in which 
the English court held a statute passed by the Colonial As- 
sembly of Connecticut to be void as contrary to the charter of 
that Colony and to English law. 



6 

Accordingly, when the Colonies declared their independ- 
ence, and began to establish governments of their own, not only 
were they (from their previous experience with the British 
Parliament and its claims of omnipotence) particularly fearful 
of ursupation of authority by the Legislative branch, but they 
were thoroughly accustomed to seeing that branch, as it had 
existed in the colonies, subjected to the check of Judicial in- 
qiiiry into the constitutionality of its acts. The early State 
courts, therefore, did not fail to apply this check to the new 
State Legislatures, just as the old judiciary had done to the 
Colonial Assemblies. 

As far back as 1780, Chief Justice Brearly of the New 
Jersey Supreme Court is said to have given it as the opinion 
of himself and associates that the Judiciary had the right to 
pass upon the constitutionality of Statutes. 

In 1782, in the celebrated case of Commonwealth vs. Ca- 
ton, before the Virginia Court of Appeals, the distinguished 
Edmund Randolph, then Attorney General of that State, con- 
tended that the court had no choice but to apply a duly enacted 
Statute, whether it be unconstitutional or not ; but, to this con- 
tention, stout-hearted old Chancellor Wythe replied, with 
warmth, as follows: 

"If the whole Legislature (an act to be deprecated) should 
attempt to overleap the bounds prescribed to them by the people, 
I, in administering the public justice of the Country, will meet 
the United powers in my seat on this tribunal, and, pointing 
to the Constitution, will say to them 'Here is the limit of your 
authority and hither shall you go but no further'," 

Accordingly, that court held that it did have the power to 
declare any law void if unconstitutional. To the ofBcial report 
of this case in the Virginia Reports, is appended the following 
note by Daniel Call, the distinguished old reporter: 

"It is said, that this was the first case in the United States, 
where the question relative to the mdlify of an unconstitutional 
law was ever discussed before a judicial tribunal ; and the firm- 
ness of the judges (particularly of Mr. Wythe,) was higUy 
honorable to them; and will always be applauded, as having, 



incidentally, fixed a precedent, whereon, a general practice, 
wliicii tlic people of this country think essential to their rights 

and liberty, lias been establislied." 

The matter, however, gave tlie judges sufficient concern 
to address a remonstrance to the General Assembly of Vir- 
ginia, in wliieh they said they had 

"found it unavoidable to consider * * * whether the 
principles (expressed in the Legislative Acts) of this case do 
not violate those of the Constitution or form of government 
which the people in 1776 * * * established as the foun- 
dation of that government which they judged necessary for 
the preservation of their persons and their property, and, if 
such violation were apparent, whether they (the Judges) had 
the power, and it was their duty, to declare that the act must 
yield to the Constitution? On this view of the subject, (said 
they), the following alternatives presented themselves to the 
Court: either to decide those questions or to resign their of- 
fices. They judged that a resignation would subject them to 
the reproach of deserting their stations, and on that groimd, 
found themselves obliged to decide, and in that decision to 
declare, that the Constitution and the act are in opposition and 
cannot exist together, and that the former must control the lat- 
ter." 

About the same time, in the case of Holmes vs. Walton, 
the New York court declared a law of that State unconstitu- 
tional and void. 

In 1786, a defence, on the ground of the alleged uncon- 
stitutionality of a law, was made before the Rhode Island Court 
in Trevitt vs. Weeden, though I believe the case was decided 
on some other point. 

In 1787 the Supreme Court of North Carolina in Bayard 
vs. Singleton, declared a Statute imconstitutional and void. 
The court, in that case, discussing its power to declare an act of 
the legislature unconstitutional, said, among other things: 

"Another mode was proposed for putting the matter in 
controversy on a more constitutional footing for a decision than 
that of the motion under the aforesaid act. The court then, 
after everv reasonable endeavor had been used in vain for avoid- 



8 

ing a disagreeable difference between the Legislature and the 
judicial powers of the State, at leng-th with much apparent re- 
luctance, but with great deliberation and firmness, gave their 
opinion separately, but unanimously for overruling the afore- 
mentioned motion for the dismission of the said suits, in the 
course of which the judges observed that the obligation of their 
oaths and the duty of their office required them in that situation 
to give their opinion on that important and momentous subject, 
and that, notwithstanding the great reluctance they might feel 
against involving themselves in a dispute with the Legislature 
of the State, yet no object of concern or respect could come in 
competition or authorize them to dispense with the duty they 
owed the iDublic, in consequence of the trust they were invested 
with under the solemnity of their oaths; that they, therefore, 
were bound to declare that they considered that whatever disa- 
bilities the i^ersons under whom the plaintiffs were said to de- 
rive their title might jiistly have incurred against their main- 
taining or prosecuting any suits in the courts of this State, yet 
that such disabilities in their nature were merely personal, and 
not by any means capable of being transferred to the present 
plaintiffs, either by descent or purchase, and that these plain- 
tiffs being citizens of one of the United States, or citizens of 
this State, by the confederation of all the States which is to be 
taken as a part of the law of the land, unrepealable by any act 
of the General Assembly ; that by the Constitution every citizen 
had undoubtedly a right to a decision of his property by a trial 
by jury, for that if the Legislature could take away this right, 
and require him to stand condemned in his property without a 
trial, it might with as much authority require his life to be taken 
away without a trial by jury, and that he should stand condenm- 
ed to die without the formality of any trial at all; that, if the 
members of the General Assembly could do this, they might 
with equal authority uot only render themselves the legislators 
of the State for life, without any further election of the people, 
from thence transmit the dignity and authority of legislation 
down to their heirs male forever; but that it was clear that no 
acts they could pass could by any means repeal or alter the 
Constitution, because, if they could do this, they would at the 
same instant of time destroy their own existence as a Legisla- 
ture, and dissolve the government tliereby established. Conse- 
quently the Constitution (which the judicial power was bound 
to take notice of as much as of any other law whatever), stand- 
ing in full force as the fundamental law of the land, notwith- 
standing the act on which the present motion was grounded, 



tlip same act must, of coiirso, in tliat instance, stand as abro- 
gated and witiiout any eflfect." 

In a letter, dated 1788, from Mr. Cutting to Mr. Jeifer- 
son, it is stated that several years before that, the Supreme 
Court of Massachusetts bad declared a Statute unconstitutional 
and void. 

Thus, it will be seen that the idea of clothing the Juiliciary 
with the power of reviewing the constitutionality of Legislative 
acts, did not originate along with the Supreme Court of the 
United States, in the Convention of 1787, but was an idea wbicb 
the American peojile, were, even at that time, already not only 
familiar with but definitely attached to. 

The first instance in which this power seems t« have been 
exercised by a Federal Court, was in Heyburne's case in 1791, 
in which the Judges of a United States Circuit Court refused 
to exercise functions imposed upon them by Act of Congress 
because the Act was inconsistent with the Constitution. 

In 1803, the question came, for the first time, before the 
Supreme Court of the United States, in the celebrated case of 
Marbury vs. Madison, in which Chief Justice Marshal] de- 
cided against the constitutionality of a statute which enlarged 
the jurisdiction of that court at the expense of the Executive 
Department, and rendered a decision of such convincing and 
irrefutable logic, that the question was settled foi-ever. In his 
opinion he said: 

"The powers of the legislature are defined and limited. 
To what purpose is that limitation committed to writing, if 
these limits may, at any time, be passed, by those intended to 
be restrained ? * * * It is a proposition too plain to be 
contested that either the Constitution controls any legislative 
act repugnant to it or that the legislature may alter the Consti- 
tution by an ordinary act. Between these two alternatives there 
is no middle groimd. The Constitution is either a superior 
paramount law * * * or it is on a level with orclinary 
legislative acts * * * jf ^jjg former part of the alterna- 
tive be true, then a legislative act contrary to the Constitution 
is not law; if the latter part be true, then written Constitutions 
are absurd attempts on the part of the people to limit a power, 
in its own nature illimitable." 



10 

In 1816, in the great case of McCuUough vs. Maryland, 
Chief Justice Marshall, while sustaining a Statute which had 
been attacked on the ground that it was an undue assumption 
of power by Congress, again expressed himself about the exer- 
cise of this novel function of passing on the constitutionality of 
a statute, saying: 

"Let the end be legitimate, let it be within the scope of the 
Constitution, and all means which are appropriate, which are 
plainly adapted to that end, which are not prohibited but con- 
sist with the letter and spirit of the Constitution, a?'e constitu- 
tional. Should Congress, (however) in the exercise of its pow- 
ers, adopt measures which are prohibited by the Constitution; 
or should Congress, iinder pretext of exceeding its powers, pass 
laws for the accomplishment of objects not entrusted to the gov- 
ernment; it woiild become the painful duty of this tribunal, 
should a case requiring such decision come before it, to say 
that such an act was not the law of the land. But where the 
law is not prohibited and is really calculated to effect any of 
the objects entrusted to the government, to undertake to enquire 
here into the degree of its necessity would be to pass the line 
which circumscribes the Judicial department and to tread on 
Legislative gTound. This court disclaims all pretensions to 
such powers." 

When we consider these interpretations of this, the greatest 
of judicial powers, and the impartial, disinterested and moder- 
ate exercise of that power which led the Court to first overthrow 
a Statute designed to extend its own prerogatives, and then to 
sustain a Statute alleged to be an undue assumption of power 
by a co-ordinate branch of government, we may join with Wil- 
liam Pinckney in saying that we see, in these omens, "a pledge 
of immortality for the Union." 

The first tribunal, in the nature of a Federal Court, that 
ever existed in this country, was the old "Court of Appeals in 
Cases of Capture," created by the Continental Congress in 
1779, ten years before the Supreme Court of the United States 
came into being. This court, which had cognizance only of 
prize cases growing out of captures of hostile ships, was com- 
posed of three Jiidges and was required to proceed in accord- 



11 

anco with International Law, and the respective States were 
called upon to enforce its decrees. 

Two years later, in 1781, by the old Articles of Confeder- 
ation, a second step was taken towards the establishment of a 
Federal Judiciary, by giving Congress power to decide "all 
disputes and differences now subsisting, or that hereafter may 
arise, between two or more States concerning boundary, juris- 
diction or other cause whatsoever." It was provided, however, 
that this power was to be exercised through Commissioners or 
Judges, to be selected by Congress from each of the State?. 
Upon the establishment of the Supreme Court of the United 
States, this power among others was conferred upon it, and, as 
Chief Justice Taney observed in the case of the State of Florida 
against the State of Georgia, (which was a suit brought in the 
Supreme Court to settle the boundary line between those 
States) : "A suit in a court of justice between such parties and 
upon such a question is without example in the jurisprudence 
of any other country." 

Something like one hundred and twenty cases were, first 
and last, decided by the two original tribunals just referred to. 

Finally, in 1787, was created by the New Constitution, 
the great Supreme Court of the United States, the origo et fon-t 
of the real Federal Judiciary, and the most august, powerful, 
and venerated judicial tribunal ever known in the world. 

Judge Story says that "the lack of a separate Judiciary 
had been one of the vital defects of the Confederation." Ac- 
cordingly, each of the four drafts of the proposed Constitution, 
which, by Randolph, Pinckney, Paterson and Hamilton, re- 
spectively, were submitted to the Convention of 1787, contain- 
ed provisions for a regular Federal Judiciary system. 

At one time, it was proposed to authorize Congress to nega- 
tive unconstitutional acts passed by State legislatures; because, 
as earnestly pointed out by Mr. Madison, control over State leg- 
islation violative of the Federal Constitution, is absolutely es- 
sential to the preservation of the Nation. But, as was pointed 
out by Roger Sherman, Congress is not the proper body to exer- 
cise this control ; "for," said he, "it is a wrong principle to as- 
sume that a State Statute violative of the Federal Constitution 



12 

could be valid or operative for any purpose, unless or until 
negatived or repealed by a subsequent Act of Congress." 

Thus, it fell naturally and properly to the Judiciary to 
exercise this control by refusing recognition to any State stat- 
ute — just as it must, to any Act of Congress — which is in vio- 
lation of the Federal Constitution. 

The first case in v^hich the Supreme Court of the United 
States decided a State statute to be unconstitutional, was 
United States vs. Peters, from Pennsylvania in 1809. 

When the Judiciary Article of the Federal Constitution 
came from the Committee on Detail of the Convention of 1787, 
it gave to the Supreme Court, jurisdiction in "all cases arising 
under the laws passed by the Legislature of the United States ;" 
but the Convention changed this to read: All cases, in law and 
equity, arising imder this constitution, the laws of the United 
States and Treaties made, or which shall be made under their 
authority." 

While the constitution was pending before the People for 
its adoption, it was, in some instances, urged against its adop- 
tion that this clause was too vague and general. To this ob- 
jection, Mr. Deane, in the Iforth Carolina Ratifying Conven- 
tion, made reply as follows: 

"For my part, I know but two ways in which the laws can 
be executed by any government * * The first mode is by 
coercion by military force, and the second is coercion through 
the Judiciary. With respect to coercion by force, I shall sup- 
pose that it is so supremely i-epugnaut to the principles of jus- 
tice and the feelings of a free people, that no man will support 
it. It must in the end terminate in the destruction of the lib- 
erties of the people. I take it therefore that there is no rational 
way of enforcing the laws but by the instrumentality of the 
Judiciary * * * Without a Judiciary, the injimctions of 
the Constitution may be disobeyed and the positive regulations 
neglected and contravened." 

The provision of the Federal Constitution for the estab- 
lishment of a complete Federal Judiciary, was given effect by 
the great Judiciary Act, drawn by Oliver Ellsworth and pass- 
ed by Congi-ess in 1789. This Act, by which the flesh was put 



13 

upon tlie skelton created by the Constitution, is justly regarded 
as in the forefront of excellence in statutory draftsmanship. 
When first organized, the Supreme Court of the United States 
consisted of a Chief Justice and five Associate Justices; but 
the number of Associate Justices is now eight. 

The following, in the order named, have been the Chief 
Justices of the Supreme Court of the United States: 

John Jay (a great lawyer and statesman, of whom Mr. 
Webster beautifully said : "When the spotless ermine of the 
judicial robe fell upon John Jay, it touched nothing less spot- 
less than itself") ; John Rutlcdge (who "was appointed, but not 
confirmed) ; William Cushing (who resigned within about a 
week after confirmation) ; Oliver Ellsworth (draftsman of the 
Judiciary Act of 1789) ; John Marshall (the greatest of all 
judges) ; Roger B. Taney, Salmon P. Chase ; Morrison R. 
Waite, and Melville W. Fuller. 

At first, the court had very little business; but, as the 
country grew and prospered, the business of that great tribimal 
increased to such an extent that nine intermediate courts of ap- 
peal have been organized to relieve it of the less important mat- 
ters. 

During their respective terms as Chief Justice, and with- 
out resignmg that office, Jay served as Minister to England, 
and Ellsworth as Minister to France. 

At its first session the Supreme Court of the United States 
had not a single case upon its docket ; from 1Y90 to 1800 there 
■were only six cases decided by that court involving Constitu- 
tional questions; and when Chief Justice Marshall came upon 
the bench he found only ten cases awaiting decision. 

With Marshall, however , the Supreme Court, though 
twelve years old, may be said to have i-eally begun its life. He 
■was Chief Justice thirty-four years. 

It may be said that the Constitution formed the skelton 
of this N'ation, that Congress put on the flesh, and that the Su- 
preme Court shaped the figure and regulated the growth. In 
this great work, Marshall has probably done more than all the 
ether members of that court from the begiiming to the present 



14 

time; and in the opinion of many, this country owes more to 
him than to any other single man, with the possible exception 
of Washington himself. 

It is diiBcult for us to realize the magnitude of the task 
which, upon his appointment as Chief Justice, he undertook, 
so different are present conditions from those which at that time 
existed. The Federal Government was then practically begin- 
ning its existence, and almost nothing had been done in develop- 
ing our constitutional law. The scanty decisions of the Su- 
preme Court, up to that time, were nearly all contained in a 
single volume of the official reports, and of those decisions few 
dealt with constitutional questions. The people, as Edmund 
Randolph expressed it, were still "in the infancy of the science 
of constitutions." And so, with no precedents to guide him, 
and with little or no aid to be derived from books, he may be 
said to have created our system of constitutional law, laying its 
foundations broad and deep. Other judges have won renown 
in administering technical or general principles of law, or in 
this or that department of jurisprudence as applied to controver- 
sies between individuals ; but, in the department of constitu- 
tional law, — ^law as applied to the science and institutions of 
Government, — Marshall stands unrivalled and supreme. His 
judgments, so fraught with deepest consequences to the Ameri- 
can people, are justly ranked amongst the highest efforts of the 
human mind, and are distinguished as well for their simplicity 
and lucidity of style as for their irresistible logic and profound 
wisdom. 

He believed in the intelligence, conservatism and patriot- 
ism of the American people, and did not hesitate to interpret 
tlie Constitution as creating "a government of the People, by 
the People and for the People," and not merely as a continuing 
league of States such as was the old Confederation. He main- 
tained that, while the national government is one of enumerated 
powers, the Constitution should be construed not strictly, but 
reasonably, so as to give due effect to the words employed. 

And so, by his interpretation of the Constitution, he im- 
parted to it life and vigor — finding it mere paper, he left it a 
Chart for the government of a Nation. 



15 

But, while maintaining the supremacy of the Constitution, 
as reasonably interpreted, he not less clearly recognized the 
rights of the States. "In America," lie said, "the powers of 
sovereignty are divided between the government of the Union 
and those of the States. They are each sovereign with respect 
to the objects committed to it, and neither sovereign with respect 
to the objects committed to the other." lie perceived that an 
aggregation of States, each controlling its domestic concerns 
under a common head, invested with limited powers for na- 
tional purposes, is the only system adapted to the government 
of a vast territory like ours, and that, therefore, the States and 
the United States are component parts of one great whole, the 
one being as needful as the other ; or, as an eminent writer hap- 
pily expresses it, "the Union without self-existent States is as 
a harp withoiit strings; the States without union are as chords 
that are unstrung" — a principle recognized by the Supreme 
Court in Texas v. White, decided in 1869, where the court 
speaks of "an indestructible Union composed of indestructible 
States." 

While the great work of Chief Justice Marshall is recog- 
nized throughout the world, yet it is a source of pride and pleas- 
ure to every American to know that this great court has at all 
times been composed of men who were noted for their ability, 
character and integrity, and the high reputation of the presid- 
ing officers of that court has at all times been maintained, the 
distinguished American who now presides over that tribunal 
being in every way a worthy successor of his illustrious pre- 
decessors. 

While Marshall was Chief Justice, eleven hundred and six 
cases were decided by the Supreme Court, of which he wrote the 
opinions in five hundred and nineteen. Out of the sixty-two 
cases involving constitutional questions which the court decid- 
ed while he was Chief Justice, thirty-six of the opinions were 
written by him. These figures may give some idea of the ex- 
tent, but not of the importance of this great man's public ser- 
vices. The extent to which he dominated that court through- 
out his long term of service may be shown by the fact that in 
only eight cases did he file dissenting opinions. 



In the five years from 1875 to 1880, the Supreme Court 
heard and decided nineteen hundred and fifty-five cases; and 
at the beginning of 1888 there were twenty-five hundred and 
seventy-one cases pending on its docket. Since then, its bur- 
dens have been relieved by the labors of nine Circuit Courts 
of Appeals, but still the Supreme Court of the United States 
is one of the hardest worked Courts in the world. 

In the sessions of that great tribunal, quietness, solemnity, 
dignity and rapidity characterize its proceedings, in which re- 
spects, as indeed in all others, it is a model for the courts of 
all the world. 

The Supreme Court, as the capstone of the Federal Ju- 
diciary, has well earned its title of "Bulwark of the Constitu- 
tion," in repelling attacks — sometimes open, sometimes insid- 
ious — upon that venerable instrument, that Ark of the ITation's 
Covenant. In doing this, it has defended States rights from 
invasion, as vigorously and as effectively as it has overthrov.-n 
assaults upon the Federal prerogatives. It has indeed proven 
itself to be the "balance wheel of the Republic." 

In the earlier days of our National life, when the newly 
formed Federal Government was surrounded by powerful 
States, like an infant King surrounded by fierce, jealous and 
turbulent Barons, its strong, faithful and efiicient gniardian 
was the Supreme Court. But, when at the close of the Civil 
War, the Federal power was unduly exalted, and many woidd 
have trampled upon the reserved rights of the States, this same 
great tribunal interposed its powerful shield for the protection 
of the real rights of the States, saying as it did in Texas vs. 
White, 

"The preservation of the States and the maintenance of 
their govenmient are as much within the design and care of the 
Constitution, as the preservation and the maintenance of the 
National Government." 

And, when, even in the midst of Civil War, ill advised 
men, flushed with recent victory and intoxicated with power, 
sought to stretch forth the mighty hand of the Federal Gov- 
ernment to illegally seize the property of a private individual, 



ir 

rvcn though he were one of the avowed advcrearies of that \ev.y 
Government, the Supreme Court, in the great case of United 
States vs. Lee, decided in 1882, interposed its protecting aegii, 
proclaiming the fact that America is the land of Law and not 
of Violence, and that not even the greatest Government on eartn 
can override the Constitutional rights of a fi-ee American Citi- 
zen. 

In the course of the masterly opinion of the Court in that 
case, Mr. Justice Miller (esteemed by many to rank in ability 
next to the great Marshall himself), discussing the Coustitu- 
'tional provisions for the protection of the individual, said: 

"These provisions for the security of the rights of the citi- 
zen stand in the Constitution in the same connection and upon 
the same ground, as they regard his liberty and his property, 
and it cannot "be denied (hat 'both were intended to be enforced 
'by the 'judiciary." 

Further, it was said that no kingly principle can limit the 
operation of the constitutional guaranties ; that no man in this 
country is so high that he is above the law ; that no officer of the 
law may set that law at defiance with impunity; that all the 
officers of the government, from the highest to the lowest, are 
creatures of the law, and are bound to obey it — a sentiment, 
let me add, worthy to be written in letters of gold, and placed 
'in every American home! 

Thus we have seen the great "head of the Federal. Judiciary 
Department in Marbury vs. Madison, declining to permit its 
own powers to be unduly enlarged — in McCullock vs. Maryland 
repelling an attack upon the powers of a co-ordinate branch of 
the Government — in U. S. vs. Peters, & Hunter's Lessee vs. 
Martin, defending the Federal Government from attacks by the 
States — in Texas rs. White, repelling invasion, of State's rights 
by the Federal Government — and in U. S. vs. Lee protecting 
individuals from oppression by the Government. In the light 
of sneh a record, we can truly say that the Glory of the Ameri- 
can Republic is its Judiciary! 

Thus far, I have in a hasty and imperfect manner spoken 
chiefly of :the Federal Judiciary. I would not, however, be 



IS 

understood as wanting in ajjpreciation of the splendid contri- 
butions to our jurisprudence, and to the maintenance of the 
Constitution, by State Judges. The names of Taylor, Kuffin, 
Pearson, Gaston, Bynum, Reed, Pendleton, Tucker, Staples, 
Kent, Shaw, Walworth, Gibson, Cooley, and many others who 
have adorned the bench of their respective States, will ever be 
venerated and held in grateful remembrance. Indeed, the his- 
tory of American law could not well be written without refer- 
ring to the work of those eminent jurists. 

It is a great mistake to suppose that the duty of expounding 
the Constitution has been developed upon the Federal Courts 
alone. From the organization of the Government, that duty 
has been shared by the Courts of the several States, and in 
many other matters these Courts have exercised, under the law, 
a concurrent jurisdiction with the Courts of the Union. 

And here it is appropriate to say that as the judges are 
recruited from the Bar, whatever of honor or renown the ju- 
diciary has won belongs to the legal profession. The most 
celebrated judgments that have ever been rendered from the 
Bench were rendered after able and helpful arguments from 
the Bar. Think of the invaluable contribvitions to our juris- 
prudence in the forensic arguments of Hamilton, Webster, and 
many other brilliant ornaments of tlie Bar, whose names are 
familiar to us all. 

The judge, if such a one there be, who imagines that h-^ 
has no need of the aid of coimsel, is to be pitied, as are the im- 
fortunate litigants before him, or, rather I should say, the un- 
fortunate victims of his stupidity and conceit. 

To say, moreover, in this connection, that not only has the 
American Bar won imperishable fame in the forum and in the 
Senate, but thrt in every great movement in our history, whicli 
Las redoimded to the public good and the pubiic honor, the 
leaders have nearly always been lawyers, would be but to affirm 
the well known facts of history which no one can refute. 

"Justice," said Mr. Webster, "is the great interest of man 
on earth; it is the ligament which holds civilized beings and 
civilized nations together. Wherever her templ-d stands, and 
so long as it is duly honored, there is a foundation for social 



19 

security, general liapjiiii(>ss ami llir iiii]iri'vciii lil ami |)n)f;;rpss 
of our race." 

If \vc are to avoid anarchy (jr civil wai', the right tu au- 
thoritatively construe the Constitution and settle all conilicts 
with it, must be lodged in some department of the Government. 
With this tremendous, and therefore, delicate and dangerous, 
power, no department could be so wisely or so safely trusted 
as the Judiciary. 

I say "wisely," not because judges have any more wisdom 
than other men, but because the nature of their calling with- 
draws them from the active affairs of life, the passions genei"- 
oted by which so often becloud or overthrow men's judgment ; 
because long years of considering and deciding controversies 
makes them more dispassionate, clear minded and discriminat- 
ing than they would otherwise be ; because the machinery of a 
judicial tribunal, insuring a full, quiet hearing for both sides 
and ample time for calm consideration, tends, as far as human 
agencies can contribute, to insure fair, just and wise decisions ; 
and because the right of appeal from one Court to another, 
which exists in practically all important cases, insures cooling 
time, reflection and the checking of the decision's soundness by 
the independent judgment of a new set of men. 

I say the Judiciary is the "safest" department of Govern- 
ment to which this gi'eat power can be entrusted, not becaiise 
judges are better or more trust-worthy than other men, but be- 
cause, in the nature of things, the Judiciary Department is 
powerless to usurp the powers of either the Legislative or Exec- 
utive branches. 

In the language of Alexander Hamilton, (the Judiciary) 
"may be truly said to have neither force nor will, but merely 
judicial judgment and must ultimately depend upon the aid 
of the Executive arm, for the efficacious exercise even of this 
faculty." 

Or, as Professor Willougliby has so well put it : 

"With no executive force at its back, and without means 
of extending its influence either by patronage or command of 
the public revenues, it relies for the execution of its decrees, 
upon the legal spirit and reverence for law of the people, and 



20 

upon their confidence in its justice and their faith in its wis- 
dom." 

The judge, then, who, by his life, would betray this con- 
fidence, or by his unworthy deeds pollute the temple of justice, 
or destroy the reverence of the People for their laws, let him be 
-Anathema, for, indeed, as Chief Justice Marshall said: "the 
greatest scourage an angry Heaven ever inflicted upon an un- 
grateful and sinning people, is an ignorant, a corrupt or a de- 
pendent Judiciary." 

Strange to say, there are those who at this day and time 
insist that the courts have no power to declare an act of the 
Legislative branch invalid when it is in conflict with the Na- 
tional or State Constitution, and in many instances unwarrant- 
ed attacks are made upon the Supreme Court of the United 
States and the Suj^reme Courts of the States as well as the 
other courts of the Nation and States. 

The individual who insists that the courts liave no power 
to declare an act of the National or State Legislature invalid 
proclaims a doctrine no less dangeroiis to the public welfare 
than he who by corrupt means seeks to pollute the fountain of 
justice so as to prevent a fair and impartial consideration of 
questions which may be presented to the courts for considera- 
tion. 

The judges of this country, with rarest exceptions, have 
been exempt from criticism calculated to affect their integrity. 
This is a splendid tribute to the wisdom and foresight of the 
framers of the Constitution, and while it is a guarantee of the 
stability of our institutions, at the same time it reflects .great 
credit upon the character of the American people. 

To adopt the theory of those who profess to believe that the 
courts are without authority to declare a legislative act uncon- 
stitutional, would be to reverse the uniform policy of this gov^ 
ernment from its foundation until this good hour. It would 
be the accomplishment of that which was declared otherwise 
when the Constitution was adopted, and which has been finally 
and forever settled by the highest courts, both State and Na- 
tional. 



21 

There is a gi-owing tendency on the part of many to in- 
-line to theories that are wholly inconsistent with our distinc- 
tive form of government, and while at present they are making 
but little headway, it should be constantly borne in mind that 
"eternal vigilance is the price of liberty." It might with equal 
propriety be said that the perpetuity of our institutions depends 
upon the vigilance of those who believe in the doctrines enun- 
ciated by Washington, Hamilton, Madison, Jefferson, Chief 
Justice Marshall, and the other patriots to whose wisdom and 
courage we are indebted for the splendid heritage which we 
now enjoy. 

Under our system of government a citizen may lie down at 
night and rest undisturbed as to the safety of his life and prop- 
erty, and this ideal condition is due to the fact that the strong 
arm of the law prevails and is supreme on every inch of soil 
beneath the Stars and Stripes. This condition was made pos- 
sible as a resiilt of the fair and impartial administration of 
justice by a Judiciary whose sole ambition was to enforce the 
law in accordance with the written Constitution drafted by 
those who sacrificed their all in order that their descendants 
might be exempt from the acts of tyranny and injustice which 
inspired them to take the initiative in a movement the like of 
which in magnitude and importance had never been undertaken 
by any people on the face of the earth. 

I firmly believe that an overwhelming majority of the 
American people fully appreciate the strength of our Govern- 
ment as now constituted, as well as the many blessings that flow 
therefrom, and while we are occasionally confronted by the 
spasmodic efforts of those who know not what they do, and whose 
counsel, if heeded, would disrupt our Government, nevertheless 
I have an abiding faith in the American people, and I cannot 
believe that the time will ever come when a government of the 
People, for the People and by the People shall perish from the 
face of the earth. 



i